The rules international organizations (IOs) make deviate considerably from the traditional sources of international law in Article 38 of the International Court of Justice's (ICJ) Statute and the ways those are understood: as generated, enforced, and interpreted by states based on their consent. As this panel demonstrates, IO “rules” take various forms—e.g., guidelines, recommendations, and standards—and are promulgated by not only traditional interstate organizations but public/private hybrids, transnational networks involving agencies inside states, private associations of industry or other experts, or subsidiary committees of the parties (COPs) or meetings of the parties (MOPs). These rules enjoy varying degrees of authoritativeness, often purport to have some impact on state and non-state actors, and depart, sometimes quite openly, from reliance on state consent. And even when IOs turn to the traditional sources—treaties, custom, general principles—these take untraditional forms that blur distinctions between binding and non-binding law. Whether these governance efforts are described as systems of “global administrative law,” “global constitutionalism,” or “transnational legal orders” or as new forms of “international public law,” they are certainly different from your grandmother's public international law.Footnote ¹ Like “soft” law before it, these governance efforts have drawn the ire of legal positivists who ask, with some justice, what is meant by “law” if everyone (public, private, and in-between) is a potential “lawmaker” and no one can be certain about whether their efforts entail legal responsibility and, if so, for whom.

Such critics would not draw much comfort from this panel. Those addressing classic interstate organizations (the World Health Organization (WHO), the Organisation for Economic Co-operation and Development (OECD), and the International Labour Organization (ILO)) describe institutions that have been enablers of international law's greatly changed sources, actors, and processes over the past one hundred years. They portray institutions that have transformed themselves without formal charter amendment duly ratified by states. The ILO that Kohiyama addresses, for example, has effectively undergone three de facto charter amendments since 1919 through informal means: its 1944 Philadelphia Declaration (which transformed it into a human rights organization); its 1998 Declaration on Fundamental Principles and Rights at Work (which elevated some labor rights over others and made members responsible for those rights even if they had not ratified the relevant ILO conventions); and its ILO Declaration on Social Justice for a Fair Globalization (which sought to recalibrate the institution to address the “social imbalances” brought on by free trade and capital flows). Kohiyama's description of that institution's 2006 Maritime Labour Convention reminds us that even back in 1919 when the tripartite ILO was established, IOs involved private actors (in that case businesses and national and international trade unions) in the making of international law. IOs’ reach into and beyond the state started long before the establishment of the UN system and has only accelerated since then. The 2006 Convention reflects how IO sponsored treaties alter what treaties do. That treaty like many others in the age of IOs “softens” the law. It topples nearly forty more traditional prior ILO conventions, replacing them with an instrument that relies on obligations to notify, standards that require only “due consideration,” or licenses that permit states to take “substantially equivalent” measures so long as ILO members satisfy themselves that these achieve the intended purposes. Like ICAO's Standards and Recommended Practices (SARPs), the code contained within that ILO treaty provides specialized agencies within states with the soft law “guidance” that gives effect to the vague commitments contained in that “hard law” instrument.

The WHO that Burci addresses is an organization that demurred from exercising its powers to make formal law for much of its history, deploying its scientific/medical epistemic community in lieu of lawyers. When the WHO finally turned to law—by serving as the venue for its first treaty (the Framework Convention for Tobacco Control (FCTC)) and a comprehensive set of binding regulations (the IHRs)—it too opted for soft “managerial” techniques. Much of the granular work of those WHO instruments is accomplished through “guidelines” periodically issued in meetings of the FCTC or the IHR's “guiding instruments” (such as its Annex I on what states need to do to establish core health institutions or Annex II's enumeration of what they need to consider with respect to public health emergencies of international concern). Much the same could be said for other IOs, including those best known for serving as venues for more traditional treaties. The OECD, well known for legally binding instruments—such as its Code of Capital Movements and its convention to combat corruption—has carved out a niche in corporate responsibility, as has the UN. Its Guidelines on Multinational Enterprises, like the UN's Global Compact and Guiding Principles on Business and Human Rights, aspire to securing “soft” accountability. Comparably “soft” or “informal” legal efforts invariably accompany even the hardest lawmaking IO processes. The UN Security Council's “smart” sanctions programs, infamous for imposing by Chapter VII fiat binding rules on individuals and organizations, heavily rely on subsidiary guidance provided to governments, banks, and other market actors issued by bodies like the Financial Action Task Force (FATF), regional entities like the EU, and the International Monetary Fund (IMF). The Council's efforts to “follow the money”—its financialization and defuse governance principles to promote nuclear non-proliferation and counterterrorism—can scarcely be understood without that broader context.Footnote ² A focus on only formal Article 38 sources of law would scarcely do justice to the legal impact of other IO efforts, from the UN High Commissioner for Refugees’ many regulatory and administrative tasks (such as conducting refugee status determinations and administering refugee camps) to the World Bank's operational policies (as with respect to consultation with indigenous peoples or the conduct of environmental risk assessments).

And while a strict positivist would be puzzled by the presence on this panel of a representative from the International Standards Organization, those who study “governance” readily accept the involvement of non-state actors in IO rule-making. Governance scholars argue that governments delegate authority to non-state actors in order to “unshackle” themselves from the rigors of traditional lawmaking.Footnote ³ They identify the benefits of managerial framework conventions, “experimentalist” governance techniques, or soft alternatives to treaties altogether.Footnote ⁴ They have explained why carrots and sticks applied by states against each other may be less effective than the mobilization of shame or “network effects” employed by non-state actors, from NGOs to market players.Footnote ⁵ They have cautioned us against measuring “compliance” with hard law without taking account the legal impact of persuasion, socialization, or mimesis.Footnote ⁶

But, as is suggested by the tidal wave of populist criticism directed at multilateral institutions as different as the International Criminal Court, the IMF, and the European Union, the legitimacy concerns against IOs appear to have grown. We need to consider the possibility that IOs’ retreat from positivist sources of law and positivist forms of lawmaking—the very thing many of us have praised—may be partly to blame.

To what extent does bypassing either the time-consuming route of engaging in the negotiation of a treaty and its ratification or the arduous task of building genuine general state practice and opinio juris for custom exacerbate perceptions of a “democratic deficit”? While the greater engagement of non-state actors in governance processes and their enforcement are often sold on the premise that increased participation is an unalloyed good, what if that “openness to civil society” is seen as skewed in favor of elite insiders or expert “stakeholders” with overly narrow perspectives?Footnote ⁷ When the WHO outsources its finances to the Bill and Melinda Gates Foundation or the World Bank becomes a conduit for private sources of capital, whose political or other agendas are being advanced and at what cost to, for example, operationalizing sovereign equality? What legitimacy consequences emerge if discrete international regimes—on health, investment, civil aviation, financial regulation, or the governance of the internet—are in effect “privatized” through the delegation of authority to private non-state actors?

To the extent state consent no longer is a prerequisite for international legal obligations—hard or soft—whose consent should we value and what makes those actors accountable? Are NGOs, multinational enterprises, or entities controlled by either as accountable as rule of law states? To what extent do soft law efforts to address the accountability of either corporations or IOs themselves (as under the International Law Commission's Draft Rules on International Responsibility (DARIO)) really address accountability gaps as evident as those involving the Bhopal disaster, corruption by representatives to the UN, the spread of cholera in Haiti, sexual assaults by UN peacekeepers, or the placement of refugees in camps containing lead?Footnote ⁸

To the extent we blur—as do governance scholars—lex lata from lex ferenda what safe harbors exist for those seeking to abide by law and what exit ramps do we provide law evaders? If, as some public law scholars suggest, the Pope's encyclical on climate change is a more effective “legal” tool than the Paris Accord and we recognize both as “international public law,” what exactly distinguishes a legal adviser from a political or moral one? If everything is law, do we risk that nothing will be?

There is no question that contemporary IO lawmaking is more creative and flexible than ever before, but is it more legitimate? If IO governance efforts are measured by the traditional requisites of the rule of law—by whether they advance the equal application, clarity, accessibility, and predictability of the law and effectively impose on lawmakers legally bound discretion—the answer is not so clear.